P. v. Gutierrez

Filed 2/15/06 P. v. Gutierrez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Hector Manual Gutierrez appeals from the judgment entered after a jury convicted him of transporting cocaine (count 1; Health & Saf. Code , § 11352, subd. (a)) and possession of cocaine (count 2; § 11350, subd. (a)).^[1] Appellant admitted a prior conviction for possession of cocaine for sale (§§ 11351; 11370.2, subd. (a)) and was sentenced to six years state prison. We conclude that the concurrent sentence on count 2 for possession of cocaine should be stayed pursuant to Penal Code section 654 and affirm the judgment as modified. The sentence remains the same, six years.

Facts

On the evening of April 3, 2003, appellant was stopped for driving a vehicle with expired registration tags. Appellant was under the influence of narcotics and arrested. The officers found two plastic bindles containing 13.3 grams of cocaine between the driver's seat and center console. A small amount of marijuana was under a piece of paper in the center console. Appellant told the officers there was more cocaine in his wallet. The wallet contained $1,479 cash and a gram of cocaine.

Waiving his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]), appellant said he purchased the cocaine earlier that day. Appellant told an officer that he planned to furnish it to friends at his daughter's birthday party.

Detective Joe Lopez, a narcotics expert, testified that 13.3 grams of cocaine (about half an ounce) would yield 133 doses and had a $600 to $650 street value if sold in individual doses. The detective opined that appellant possessed the cocaine for sale based on the quantity found (13.3 grams) and the large amount of cash ($1,479).

Appellant defended on the theory that the cocaine was for personal use. He denied telling anyone that he planned to furnish the cocaine to others. Appellant claimed that the money in his wallet came from a construction job ($1,000) and that a friend had recently paid him on a loan.

Jose Ramirez Marin testified that he and appellant used cocaine in April 2003 and that appellant shared cocaine with him on several occasions

Probation Report

Appellant argues that he was denied a fair sentencing hearing because the probation report erroneously stated that he was ineligible for probation.^[2] Appellant objected to the probation report and filed a "Statement in Mitigation" listing factors supporting a grant of probation. Citing People v. Glasper (2003) 113 Cal.App.4th 1104, appellant argued that he was eligible for probation under Proposition 36, also known as the Substance Abuse and Crime Prevention Act of 2000. (Pen Code, § 1210, et seq.) The trial court denied probation based on appellant's criminal record and the current offenses.

Appellant claims that the trial court may have believed that it had no discretion to grant probation. We reject the argument because Proposition 36 probation was argued at the sentencing hearing. It is presumed that the trial court considered all relevant sentencing criteria. (Cal. Rules of Ct., rule 4.409; People v. Mosley (1997) 53 Cal.App.4th 489, 496.)

Appellant argues that the error in the probation report was prejudicial because the trial court indicated, before trial, that appellant would receive state prison if convicted. At a Marsden hearing, the trial court advised appellant to seriously consider an 18-month negotiated sentence offered by the People. Appellant was warned that if he was convicted on all the charges, "you are going to prison. You're not going to get probation."

This advisement was a correct statement of the law and does not support the argument that the trial court was unwilling to consider probation after the jury returned its verdict. Appellant had a prior conviction for possession for sale (§ 11351) and was not eligible for probation if convicted a second time. (§ 1203.07, subd. (a)(11); People v. McGuire (1993) 14 Cal.App.4th 687, 693-694.) A new conviction for possession for sale would also make appellant ineligible for Proposition 36 probation. (Pen. Code, § 1210, subd. (a).)

At the sentencing hearing, the court considered the trial evidence, the probation report, the Statement in Mitigation, and counsel's arguments. It reasonably concluded that appellant was not eligible for Proposition 36 probation because the conviction on count 1 was for transporting cocaine for other than personal use. (See People v. Dove III (2004) 124 Cal.App.4th 1, 10 [finding that transportation of drugs was not for personal use need not be stated on record].)

Proposition 36

Appellant contends that Proposition 36 probation is mandatory because the jury, on count 2, acquitted him of possession for sale and found him guilty of the lesser included offense of simple possession of cocaine. Proposition 36 provides in pertinent part that "[n]otwithstanding any other provision of law, . . . any person convicted of a nonviolent drug possession offense shall receive probation." (Pen. Code, § 1210.1, subd. (a).) It defines "nonviolent drug possession offense" as "[t]he unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance . . . ." (§ 1210, subd. (a); emphasis added.)

Appellant argues that the word "convicted" in section 1210.1, subdivision (a) refers to the jury verdict and the verdict alone determines whether the conviction for transporting cocaine is a "nonviolent drug possession offense." The argument is based on the theory that the acquittal on count 2 for possession for sale bars the state prison sentence on count 1 for transporting.

In People v. Mendoza (2003) 106 Cal.App.4th 1030 (Mendoza), the Court of Appeal held that the word "conviction" as used in Penal Code section 1210.1, subdivision (a) limits Proposition 36 to defendants convicted after July 1, 2001, the effective date of Proposition 36. There, the defendant pled guilty to possession of a controlled substance before July 1, 2001, absconded, and was sentenced about a year later. The Court of Appeal held that defendant was not entitled to a Proposition 36 disposition because the conviction occurred before July 1, 2001. (Id., at p. 1032.) The court declined to follow other published cases (In re DeLong (2001) 93 Cal.App.4th 562, 564; In re Scoggins (2001) 94 Cal.App.4th 650, 657) holding that "convicted" means adjudication of guilt and sentencing. (Mendoza, supra, 106 Cal.App.4th at p. 1034.)

Appellant's reliance on Mendoza is misplaced because the question of whether appellant was convicted of a "nonviolent drug possession offense" (Pen. Code, § 1210, subd. (a)) cannot be determined from the verdict. Where the conviction is for transportation of a controlled substance, Proposition 36 does not divide the offense into degrees or create a new crime of transportation for personal use. (People v. Barasa (2002) 103 Cal.App.4th 287, 295; People v. Glasper, supra, 113 Cal.App.4th at p. 1115.) A defendant can be convicted of transportation even if he is acquitted of possession for sale or simple possession. (Id., at p. 1114.) "Sometimes, as in this case, a jury's verdict will not necessarily determine whether the defendant is eligible or ineligible" for Proposition 36 probation. (People v. Dove III, supra, 124 Cal.App.4th at p. 10.)

People v. Glasper

In People v. Glasper, supra, 113 Cal.App.4th at p. 1114 (Glasper), defendants were convicted of transporting cocaine base (§ 11352, subd. (a)). Defendants were also charged with possession for sale and were either acquitted or found guilty of the lesser-included offense of possession of cocaine base. (§ 11350). The Court of Appeal rejected the argument that the acquittal for possession for sale precluded the trial court from making a factual determination that the drugs were transported for purposes other than personal use. (Id., at pp. 1113-1114.) "[W]e are convinced the intent of the electorate to strictly limit the use of Proposition 36 to those involved in simple drug possession for personal use would be frustrated were we to accept the argument that a defendant must be given Proposition 36 diversion unless the prosecution pleads and the jury finds that the felony of transportation was for something other than personal use." (Id., at p. 1114.)

We concur and adopt the same analysis here. The acquittal on count 2 for possession for sale did not preclude the trial court from finding that appellant transported the cocaine for purposes other than personal use. (Glasper, supra, 113 Cal.App.4th at pp. 1115-1116; People v. Dove, supra, 124 Cal.App.4th at p. 11; People v. Barasa, supra, 103 Cal.App.4th at pp. 295-296.) "The acquittal simply meant the jury was not convinced beyond a reasonable doubt that the possession was for sale. . . . [T]he trial court was free to redetermine the personal use issue based on a preponderance of the evidence. [Citation.]" (People v. Dove III, supra, 124 Cal.App.4th at p. 11.) The burden was on appellant at the sentencing hearing to show by a preponderance of the evidence that he transported the cocaine for personal use. (Glasper, supra, 113 Cal.App.4th at pp. 1115-1116.)

If appellant's analogy to Mendoza is the law, a defendant "convicted" of transporting drugs would be precluded from proving at the sentencing hearing that the drugs were transported for personal use. The defendant would have to incriminate himself at trial and admit the drugs were transported for personal use. To avoid this anomaly, Proposition 36 evidence can be presented at the sentencing hearing where the trial court has the inherent authority to determine whether the drugs were transported for purposes other than personal use. (Glasper, supra, 113 Cal.App.4th at p. 1113.)

Appellant argues that the jury questions and verdict compel the finding that the cocaine was transported solely for personal use.^[3] The evidence is to the contrary. Appellant purchased a large quantity of cocaine in Santa Barbara and transported it to Ventura where he was stopped with the cocaine and a large amount of money. An expert opined that the two plastic bags of cocaine would yield 133 doses, had a $600 to $650 street value, and that appellant possessed it for sale.

The most damning evidence was appellant's statement that he planned to furnish the cocaine to friends at his daughter's birthday party. After trial, appellant told the probation officer that the cocaine was to "share" with friends at his wedding party. This admission was consistent with Jose Marin's testimony that appellant had shared cocaine with him on more than one occasion.

Our Supreme Court has stated that Proposition 36 is "strictly limited – affecting 'only simple drug possession,' and changing '[n]o other criminal laws'

[citation] . . . ." (People v. Canty (2004) 32 Cal.4th 1266, 1282.) Proposition 36 does not permit a sentence reduction where the defendant admits, before and after trial, that he transported cocaine to furnish to others. (See e.g., People v. Barasa, supra, 103 Cal.App.3d at p. 297 [defendant transported large quantity of cocaine and admitted he was selling drug].) "[U]nless the evidence shows [transportation for] personal use as a matter of law, a prison sentence is not subject to reversal merely because the trial court failed to make an express finding of personal use." (People v. Dove III, supra, 124 Cal.App.4th at pp. 10-11.)

Count 2: Concurrent Sentence

Appellant argues that the trial court erred in imposing a two year concurrent sentence on count 2 for possession. Penal Code section 654 precludes multiple punishments for a single act or indivisible course of conduct. (People v. Miller (1977) 18 Cal.3d 873, 885.) Where a defendant commits a single act of carrying contraband in his automobile, the act gives rise to a drug transportation and possession conviction but warrants the imposition of a single sentence. (People v. Thomas (1991) 231 Cal.App.3d 299, 306-307.)

Here the convictions for transportation and possession are based on the same cocaine. The prosecutor argued that 13.3 grams of cocaine was a large quantity and supported a conviction on count 2 for possession for sale.^[4] The jury returned a guilty verdict on the lesser included offense of possession, but the conviction was not based on the cocaine in appellant's wallet or the cocaine ingested before the traffic stop.

"[Appellant's] conduct violated two penal statutes, but his possession and transportation of [cocaine] was an indivisible course of conduct with a single objective. Penal Code section 654 prohibits multiple sentences under that circumstance, even though the sentences are ordered to run concurrently. [Citations.]" (People v. Solo (1970) 8 Cal.App.3d 201, 208, disapproved on another ground in People v. Rogers (1971) 5 Cal.3d 129, 134, fn. 4. )

The judgment is modified to reflect that the sentence on count 2 for possession of a controlled substance is stayed pursuant to Penal Code section 654. As modified, the judgment is affirmed and the sentence remains the same: six years state prison. Consistent with this opinion the trial court is directed to prepare an amended abstract of judgment and forward it to the Department of Corrections.

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, Acting P.J.

We concur:

COFFEE, J.

PERREN, J.

Herbert Curtis III, Judge

Superior Court County of Ventura

______________________________

Laini Millar Melnick, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Ana Duarte, Supervising Deputy Attorneys General, Allison H. Chung, Deputy Attorney General, for Plaintiff and Respondent.

Publication courtesy of Carlsbad Real Estate Attorneys ( http://www.mcmillanlaw.us/) . And Carlsbad Lawyers Directory ( http://www.fearnotlaw.com/ ).

^[1] Unless otherwise stated, all statutory references are to the Health & Safety Code.

On count 1, the jury convicted appellant of transporting cocaine. (§ 11352, subd. (a).) On count 2, appellant was acquitted of possession for sale (§ 11351) and convicted on the lesser included offense of possession of cocaine (§ 11350, subd. (a)).

^[2] The probation report stated: "Per 1203.07(a)(11) PC, as to Count 1, and 11370(a) H&S per Count 2, probation shall not be granted. . . ." It did not discuss probation eligibility under Proposition 36.

^[3] During deliberations, the jury asked: "Re Count 1 – does guilty of 'sale/transportation/offer to sell' mean sale or transportation or offer to sell or all three? Must we find him guilty of all three to find him guilty of count 1?"

The trial court referred the jury to CALJIC 12.02 which stated in pertinent part: "Every person who [transports], sells, furnishes, administers or gives away cocaine, a controlled substance, is guilty of a violation of Health and Safety Code section 11352(a), a crime. [¶] . . . [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A person transported cocaine, a controlled substance; and [¶] 2. That person knew of its presence and nature as a controlled substance. [¶] 3. The substance transported was in an amount sufficient to be used as a control[l]ed substance."

In a second note, the jury asked: "We are still confused about count 1. If we believe he only transported it is he guilty of count 1?"

Referring to CALJIC 12.02, the trial court answered: "The instruction should read in the alternative – transports, or sells, or furnishes, or administers, or gives away cocaine."

^[4] Referring to the gram of cocaine in appellant's wallet (Exhibit 3), the prosecutor argued that if a "[p]erson was arrested with something like that, it would be possession, 11350 of the Health & Safety Code. That's simple possession." Referring to the two plastic bags containing 13.3 grams of cocaine (Exhibit 1), the prosecutor argued: "That's possession for sales. That's roughly a quarter ounce bag, each one of those. Not simple possession."